Supreme Court Said to Stymie Environmental Causes

Environmental interests were trounced in the 2009 Supreme Court term that ends Monday.

In five high-profile cases, the justices overturned decisions that favored environmentalists. They ruled in favor of the Navy in a case pitting national security concerns against the welfare of marine mammals; limited the scope of liability for a Superfund cleanup; and reversed a decision that held no cost-benefit test could be used to determine the best technology for withdrawing water from rivers to cool power-plant turbines.

In addition, the court held that five conservation groups lacked standing to challenge U.S. Forest Service regulations and found that the Army Corps of Engineers, not U.S. EPA, has permitting authority over mining-waste discharges under the Clean Water Act.

"This term's environmental decisions, taken as a whole, convey a message of extreme hostility to the goals and methods of environmental law," said John Echeverria, director of the Georgetown University Law Center's Environmental Law and Policy Institute. "Based both on the specific cases the court selected for review, and the court's actual decisions in the cases, the overall effect of the rulings has been to weaken environmental protections across the board."

Supreme Court watchers and the attorneys representing parties involved in these cases offered varying theories about why the notoriously tight-lipped court ruled a certain way and unanimously pointed to a perceived interest among the justices in environmental-themed cases.

"All we really know for sure is that there seem to be at least four justices who are willing to reach out and examine environmental cases with consistency," said Jay Austin, who heads the Environmental Law Institute's program monitoring Supreme Court environmental litigation. "Of course it's interesting to note that these are almost uniformly the cases that they end up opposing."

Echeverria attributed the 100 percent reversal rate on environmental-themed decisions this term to "serious concern on the part of the court's conservative majority about potential undue regulatory burdens on business."

That would be an acceptable rationale for the Pacific Legal Foundation's Steven Geoffrey Gieseler, who filed a friend-of-the-court brief backing the government and private parties in the Navy sonar and power plant cases.

Gieseler welcomed the court's majority decisions, which he described as "narrow and pragmatic."

"All in all, and not just limited to environmental cases, the court this year seemed much more interested in consensus building, and to that end, the major decisions were much more narrow in scope," he said. "What could be described as real ideological 'home runs' on some of these issues were avoided in favor of more narrow and pragmatic rulings on the merits of each case."

Another contributing factor could simply be that four of the five environmental-themed cases on review came from the 9th U.S. Circuit Court of Appeals, said Robert L. Fischman, an environmental law professor at Indiana University Maurer School of Law.

The 9th Circuit, which hears appeals in federal cases from Alaska to Arizona, is by far the largest of the 13 circuit courts. For many years, the court has held the distinction of having the most cases overturned on review.

"The fact that the 9th is so big geographically it is certainly a factor," said Thomas Jackson, a Washington D.C.-based environmental lawyer who argued on behalf of corporate trade groups in the Superfund cases. "There do tend to be a number of environmental cases that arise out of the 9th Circuit as well. I think historically, environmental organizations probably preferred to file in the 9th Circuit because they believed it was a circuit that was sympathetic to their viewpoints."

Elite attorneys 'made a big difference'

Environmental issues have become increasingly popular among the elite group of private-sector attorneys who regularly argue high-profile cases before the Supreme Court. This could explain why the justices decided to accept these particular cases, according to Georgetown University law professor Richard Lazarus, who has represented more than 40 clients in environmental cases before the court.

"Some of the best Supreme Court lawyers in the country represented industry groups and should be given credit for successfully getting review," said Lazarus, who argued on behalf of the group Riverkeeper Inc. in one of the Clean Water Act suits before the court this term. "This was the term in which expert Supreme Court private-sector attorneys came into environmental law and made a big difference."

Lazarus pointed to former Solicitor General Ted Olson, who successfully represented Coeur Alaska and the state in the case decided earlier this week, and Maureen Mahoney of Latham & Watkins LLP, head of the D.C. firm's appellate and constitutional practice, who represented the winning sides in both the Superfund and Clean Water Act cases.

"These are a handful of extremely well-respected and well-known Supreme Court lawyers who receive a great deal of deference from the justices, who only hear about 70 or 75 cases per year," Lazarus said. "Supreme Court law firms often can't charge top dollar for these cases because they involve a 'no pay' client -- such as a criminal defendant suing on 4th Amendment grounds. Environmental cases with major industry groups and all of those who will file amicus briefs can be taken straight to the bank."

Lazarus returned to the subject of possible Supreme Court deference when speculating about why the justices declined to hear a high-profile case involving confusion created by the court's 2006 decision in Rapanos v. U.S., a global climate change case.

"U.S. v. McWane Inc. was absolutely cert worthy. The solicitor general petitioned for review, there was a circuit conflict and it involved a major threshold question in environmental law," he said. "So why did the court decline to hear the case? Miguel Estrada wrote a very effective brief in opposition."

Estrada, a partner at Gibson, Dunn & Crutcher LLP who was nominated for a circuit seat by President George W. Bush, has argued more than 17 cases before the high court and briefed many others.

The case that got away

In Rapanos, a 4-1-4 Supreme Court offered a splintered decision on enforcement of Section 404 of the Clean Water Act, which concerned whether wetlands or waterways fall within the jurisdiction of the law.

In the McWane case, the solicitor general asked the high court to clarify its decision in a case from the 11th U.S. Circuit Court of Appeals that turned on whether a Birmingham, Ala., pipe manufacturer had violated the Clean Water Act. The district and circuit courts had conflicting opinions on the case.

The Pacific Legal Foundation, which argued on behalf of the winning side in Rapanos, also filed an amicus brief that urged the court to take the case, Gieseler said.

"It was a win for us but it was a 4-1-4 opinion and there is a great deal of confusion in the lower courts about which test applies," he said. "It's not just because of the kind of division in the court but also because Justice [Anthony] Kennedy's opinion that is most often held to control is somewhat murky."

Jackson said he expects another opportunity to arise for the court to revisit the issue.

"The court is obviously pretty split on this," he said. "Also, the confusion among the lower courts will probably eventually compel the justices to weigh in again at a time that is appropriate."

Legislation making its way through the Senate would restore the Clean Water Act protections narrowed by Rapanos, which would likely lead to more lawsuits, said Matt Kenna of the Western Environmental Law Center. The Senate Environment and Public Works Committee approved the wetlands bill, 12-7, last week amid strong Republican dissent.

"While environmentalists welcome Congress' action to reverse Rapanos, developers and industry groups will likely mount a direct legal challenge that could eventually make its way back to the Supreme Court," said Kenna, who argued on behalf of the respondents in Summers v. Earth Island Institute.

Assessing the impact

Environmental law experts remain divided on the immediate and long-term significance of the five decided cases.

"Each of these five cases are more significant than the Exxon case decided last year," Fischman said. "Four of the cases deal explicitly with an environmental statute and the one that doesn't -- Summers -- concerns an issue that arises in almost every situation where environmental groups are challenging something that the government does."

While Winter v. NRDC received a majority of media attention because of its national security component, the standing question at issue in Summers v. Earth Island Institute could likely have a broader impact, according to Fischman.

"Winter involved a much more complicated procedural situation," he said. "The environmental community closely followed the Summers case because these groups often face this issue when trying to assert their own interests in a lawsuit."

Austin said he remained hopeful that the Summers decision will have a limited impact.

"It could have been much worse, but it was decided in a way that the consequences were not as bad as they could have been," he said. "The ruling was confined to the facts of that case and the specific plaintiffs. Even though [Justice Antonin] Scalia included a lot of language that was very dismissive of environmental groups, he did not adopt the very extreme position argued by the government."

PLF's Gieseler said he expects the Navy sonar decision will have more influence than some believe.

"There was a unique context in the sonar case -- national security -- but nothing that limited that holding to national security interests going forward," Gieseler said. "We're talking about an injunction that would impact the economy or other constitutional matters such as property. We don't see any reason that the principles underlying Winter wouldn't be applicable in these cases."

Meanwhile, the consolidated CERCLA cases could have an immediate impact on lower courts' decision-making, said John Nagle, an environmental law professor at the University of Notre Dame's law school.

"Burlington Northern was the most surprising given that the majority ended up addressing issues that the Supreme Court had never really addressed but had been thought to have been resolved by the lower courts decades ago," he said.

Looking ahead

Earlier this month, the court announced it would hear a case concerning the private property rights of waterfront landowners in Florida when it begins a new term on Oct. 5.

In Stop the Beach Renourishment v. Florida, the justices will consider whether the state Supreme Court violated the Constitution's takings clause when it upheld a Florida government plan to create a state-owned public beach between private waterfront land and the Gulf of Mexico.

Meanwhile, opinion is mixed on whether the court's new term will feature as many high-profile environmental-themed cases.

"There might be a bit of a lull in activity, but as the new administration becomes more active in rule making, we will see more issues being litigated and they will eventually find their way to the Supreme Court," Nagle said.

Rather than environmental groups, which often initiated the lawsuits against Bush-era regulations, industry groups will begin opposing actions, especially as the Obama administration overturns rules, Kenna said.

"We're more likely to see regulated businesses being the ones looking for help at the court rather than the government simply because they'll be the ones challenging more of the policies of the Obama administration," he said.

Winter v. Natural Resources Defense Council (07-1239)
Decided: Nov. 12, 2008
Appealed from: 9th U.S. Circuit Court of Appeals
Outcome: Reversed
Vote: 5-4
Question before the court: Whether lower courts properly enjoined the Navy's use of sonar during certain training exercises for failure to conduct an environmental impact statement over a finding of "emergency circumstance" by the Council on Environmental Quality.

Held: "The preliminary injunction is vacated to the extent challenged bythe Navy. The balance of equities and the public interest—whichwere barely addressed by the District Court—tip strongly in favor of the Navy. The Navy's need to conduct realistic training with activesonar to respond to the threat posed by enemy submarines plainlyoutweighs the interests advanced by the plaintiffs." -- Chief Justice John Roberts

Question before the court: Whether the petitioners were incorrectly held jointly and severally liable for environmental cleanup costs under CERCLA.

Held: "Shell is not liable as an arranger for the contamination at the Arvin facility. Section §9607(a)(3) liability may not extend beyondthe limits of the statute itself. Because CERCLA does not specifically define what it means to 'arrang[e] for' disposal of a hazardous sub-stance, the phrase should be given its ordinary meaning." -- Justice John Paul Stevens

Question before the court: Whether the Clean Water Act permits EPA to undergo a cost-benefit analysis in determining the most environmentally friendly technology at cooling water intake structures, and to regulate such structures at existing as well as new facilities.

Held: "The EPA permissibly relied on cost-benefit analysis in setting thenational performance standards and in providing for cost-benefitvariances from those standards as part of the Phase II regulations." -- Justice Antonin Scalia

Question before the court: Whether the U.S. Army Corps of Engineers may not issue a permit for discharge of fill material otherwise subject to effluent limitations under Sections 301 or 306 of the Clean Water Act.

Held: "We conclude that the Corps was the appropriate agency to issue the permit and that the permit is lawful." -- Justice Anthony Kennedy